Media Releases

 
On May 12 The Gender Centre recieved the following response from the Acting Director of Public Prosecutions on the request for an appeal.  
 
Dear Ms Brook, 
 
Prosecution of Rian Toyer: 
I refer to your letter concerning the abovenamed Offender, whom this Office prosecuted for the killing of Mhelody Bruno. 
Ms Bruno's death was a tragedy and I acknowledge the concerns of the transgender community as outlined in your letter. I note that the ODPP's Diversity and Inclusion Committee is already working with ACON to improve this Office's LGBTQ inclusive practice. 
 
I have given close consideration as to whether this Office should institute an appeal against the sentence imposed by his Honour Judge Lerve, consistent with the Prosecution Guidelines. Ultimately, I have determined that there are insufficient prospects of success on an appeal. 
Prosecution appeals against sentence have what is described as a limiting purpose, being the laying down of sentencing principles, which does not extend to the general correction of errors made by a sentencing judge. In order to succeed on an appeal against sentence, the prosecution must first establish that the broad sentencing discretion vested in a judge miscarried in a way so as to give rise to error as described in the decision of House v King (1936] HCA 40, and that the sentence imposed turned on that error. Further, the prosecution must satisfy the court that it should not exercise its residual discretion to dismiss the Crown appeal. 
 
I appreciate the importance of the issues to the transgender community raised in your letter and upon which you urge that an appeal be instituted. However, on my assessment they do not give rise to errors at law amenable to an appeal in this matter. In this regard, I note that your letter takes issue with his Honour's factual finding that Ms Bruno consented to being choked by the Offender, and I understand why this finding is of particular concern to both the transgender community and the general public.  To put the findings of fact on sentence in context, it is settled legal principle that matters aggravating the offending must be established by the prosecution to the criminal standard, namely beyond a reasonable doubt and, conversely, that matters in mitigation are only required to be established by an Offender on the balance of probabilities.
 

Whilst the factors referred to in your letter about the circumstances of the killing are relevant, in the absence of any direct evidence to contradict the Offender's account that asphyxiation was a common feature of their relationship and that it was consensual, his Honour's acceptance of this account on the balance of probabilities is not open to challenge on appeal. As a corollary of this finding being open, his Honour's ultimate assessment of the offence as being on the lower end on the scale of seriousness for matters of manslaughter cannot readily be challenged. On my reading of the judgment, this finding was not based on Ms Bruno's status as a transgender woman, such that it would not be of any precedential value for assessing the seriousness of offending against other transgender victims of crime. I would also point out that the criminal law does recognise the inherent danger of the Offender's asphyxiation of Ms Bruno, which is why Ms Bruno's death has not been treated as an unfortunate accident but rather as a crime, an unlawful killing amounting to manslaughter, and one which resulted in a sentence of full-time imprisonment. To that end, his Honour's determination to initially impose an intensive correction order (ICO) contrary to law was most unfortunate, and no doubt has added to the concern of all interested parties (including this Office) about the sentencing process. I can advise, however, that the error was raised with his Honour by the parties on the day that the ICO was imposed and corrected as soon as practicable. I agree that his Honour's acknowledgement of the victim impact statements provided by Ms Bruno's family could have been more fulsome, but note that the legislation only permits victim impact statements to be taken into account on sentence in limited ways. The judgment does not reveal any error giving rise to a ground of appeal in this regard. Although not otherwise a basis for an appeal, I acknowledge the effect that some of the language employed by his Honour could have had on members of the transgender community. I can readily accept that what, from one perspective might be viewed as a recitation of background information, may from another perspective be offensive and fail to accurately describe the experiences and identity of a transgender person. Finally, whilst this Office is not in a position to provide you with the material that you are seeking access to, I can advise that his Honour's sentence judgments are publicly available on the NSW Caselaw website, at the following links:

https://www.caselaw.nsw.go .au/de ision/l 784276380552046187a74b7

https://www.caselaw.nsw.go .au/decision/ 17 7b088eldb5945535e2c08 

 

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